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Village backs off in assessment dispute

August 08, 2018

Board decides not to charge village president for new street after attorney says risk is not worth court challenge

By

DAN BENSON

Ozaukee Press Staff

Following the advice of its attorney, the Fredonia Village Board voted unanimously last week to not assess Village President Don Dohrwardt $22,000 for a street that was built at the back end of his property.

If the village were to assess Dohrwardt’s property, it likely would be challenged in court and the village would likely lose, attorney Tim Schoonenberg, with the law firm of Houseman and Feind, wrote in an email to the village.

“Our recommendation would be to not specially assess this property due to the risk of a challenge,” Schoonenberg wrote.

The village assessed Dohrwardt $22,000 after a development went in behind his property on South Milwaukee Street in 2005 and Stoney Creek Lane opened it up to the possibility of being subdivided.

However, when Dohrwardt went to sell the property recently, a mystery deed popped up showing that his property was separated from Stoney Creek Lane by a 6.7-foot strip, making it so Dohrwardt has no access to the newer street and therefore does not benefit from it.

That prompted Dohrwardt to contest the assessment.

Trustees questioned the legal status of the mystery deed, suggesting that it was an error and the strip could easily be attached to Dohrwardt’s property.

But Schoonenberg said the deed was essentially irrelevant to the issue facing the board since the developer’s agreement and initial village resolution applied conditions before the property could be assessed. Those conditions included both selling and subdividing the property. Even though Dohrwardt was selling the property, there is no proposal to subdivide it.

“We really don’t see the issue regarding the (deed) as being the determining factor in our recommendation,” Schoonenberg wrote.

“In order to specially assess a property, it has to specially benefit the property. We have some clarity in that this property does not specially benefit from the improvements unless the property is further divided so that the new lot would front abut to the improvement.”

And if the property were subdivided, Schoonenberg added, it would create a substandard lot due in part to the presence of the 6.7-foot strip, according to the village’s zoning code. Making it legal would require a variance.

“Because it is too speculative to come up with a theory on whether the property would receive special benefits,” Schoonenberg continued, “our recommendation is that a special assessment on this lot could be challenged effectively.

“The fees to defend such an assessment could quickly outweigh the benefit the village would receive from exercising its power over this parcel.”

The Village Board voted unanimously, 6-0, to not assess the property, with Dohrwardt recusing himself.